May 16, 2014

In an unusually metaphysical copyright case, a German court has ruled that an American psychologist — and not Jesus Christ — is the author of a book that she said Christ dictated to her in a 'waking dream.' The late Helen Schucman said she was a vessel for the words of Christ in her book A Course in Miracles, and a German Christian group called the New Christian Endeavour Academy argued that they were therefore free to put text from the book up on their website without paying for it....

Arguably, to defend ownership in the text is to undercut the truth and significance of the text. Kind of a Catch-22. I haven't read the court opinion, the attorneys' briefs, or the PR for the Foundation for Inner Peace (the copyright owner), but I'd say that even if we assume divine inspiration in the extreme — the human "author" merely took dictation — the activity of setting the words into written form, with sentences and punctuation, is enough to create authorship when there is no human competitor.

By the way, did Schucman assert that Jesus dictated like a boss with a Dictaphone? Did he say "comma," "period," and "new paragraph," and so forth? Surely, even in these divinely inspired texts, the human author in giving some form to the material.

What happens in cases where a human author has related a story told by another human being? I think the person who sets it down in writing owns the copyright. For example, if David Sedaris writes a story that quotes one of his sisters telling some long anecdote, can the sister say it's hers? People are talking all the time, spewing out their stories, and authors nick these things all the time. Maybe one of you copyright experts knows about some cases like this.

I've linked to to NPR which seems mostly to think it's funny to see these legal entanglements following on the absurd claim that Jesus poured His words into the vessel that was Helen Schucman, but it's not necessary to snigger at religion. How many artists have expressed a belief that a text came from them from beyond, that they were merely a channel for the words that flowed from an unseen source? I think Bob Dylan has said things like that. And I'll just preempt the commenters who are ready to say NPR may laugh at Schucman but it wouldn't write an equivalently humorous article about the idea that the Quran has no human author.

Meanwhile, at the same NPR link, there's news of the very best human authors — Jonathan Safran Foer at the head — teaming up with Chipotle to print stories on the chain restaurant's paper cups. We all need inspiration, and if we've left all our books and other reading devices behind and the voices in our head aren't saying anything interesting, we might be sitting in a restaurant someday, staring a blank paper cup wishing there were some text there to read.

But for the humble people, the routine Chipotle customer, the experience of the text-bereft paper cup is empty. Foer envisions persons "of extremely diverse backgrounds," perhaps lacking "access to libraries, or bookstores." And even though Foer has issued his screed against meat, he pictured all those lost souls and that empty paper in cup form, and "Something felt very democratic and good about this."

Driving to a Track meet at Lussier on Tuesday, wife and I were listening to NPR, a story about a class in Shanghai for Business/Govt types on how to deal with the press. (1) It was a pointless story for NPR to do. The Shanghai bureau chief must be twiddling his thumbs, thinking up things to do. (2) It never made the obvious connection to how the Obama Administration deals with the Press. The wife and I agreed it was a dumb story.

I contract out work as a transcriptionist for a news agency, transcribing Senate hearings and the like. There is a surprising amount of work and creativity involved in finessing the stream of words into intelligible and readable sentences and paragraphs while still maintaining an accurate, near word-for-word transcription. (We don't transcribe stuttering or false starts or partial words, so it's not QUITE exact.)

The company I work for maintains a copyright on the transcriptions assembled. (I give up any copyright as part of my contract with them.) I send in my work, they have an editor go through and make it match up with the work of other transciptionists working on the same hearing, so the complete work belongs to them anyway.

So, yes, the New Christian Endeavor Academy should certainly pay for the work, even believing that Jesus dictated it. If Jesus wanted them to have it for free, he could come down and dictate it to them and let them also participate in the work of writing it down and making all the sentences and paragraphs flow and read nicely.

The court protects her intellectual property but, effectively, cheapens her claim of divine inspiration. If you're truly on a Mission From God, you (or your heirs) probably shouldn't be pissing about pfennigs in the courts.

I wouldn't worry about people in restaurants. Everywhere I go, when people are alone (and many times even when they're not), they have their cell phones out and have their choice of any literature they want.

"There is a surprising amount of work and creativity involved in finessing the stream of words into intelligible and readable sentences and paragraphs while still maintaining an accurate, near word-for-word transcription."

Janet Malcolm has written about this issue (in connection with getting sued for the way she, as a journalist, put quotes together).

"Before the invention of the tape recorder, no quotation could be verbatim—what Boswell quotes Dr. Johnson as saying was obviously not precisely what Johnson said; we will never know what that was—and many journalists continue to work without benefit of this double-edged technological aid, doing their work of editing or paraphrasing on the spot, as they scribble in their notebooks. In this litigious time, it has proved useful for journalists to have an electronic record of what a subject said. But this extra-literary reason for using a tape recorder, as well as the more conventional one of capturing the flavor of a subject’s speech, may prove to be insufficiently beneficial—to both text and journalist—to warrant the continued use of the tape recorder in journalistic interviews. Texts containing dialogue and monologue derived from a tape—however well edited the transcript may be—tend to retain some trace of their origin (almost a kind of metallic flavor) and lack the atmosphere of truthfulness present in work where it is the writer’s own ear that has caught the drift of the subject’s thought. And lawsuits in which transcripts of tape-recorded interviews are used to settle the question of what a subject did or didn’t say can degenerate (as, in my opinion, Masson v. Malcolm degenerated) into farcical squabbles about the degree to which a journalist may function as a writer rather than as a stenographer."

"The company I work for maintains a copyright on the transcriptions assembled. (I give up any copyright as part of my contract with them.) I send in my work, they have an editor go through and make it match up with the work of other transciptionists working on the same hearing, so the complete work belongs to them anyway."

There are a lot of ways to try to get a copyright in material that is public domain.

For example, West Publishing puts out volumes of court opinions, with a copyright, because of some formatting and pagination. I think there have been challenges.

By the way, did Schucman assert that Jesus dictated like a boss with a Dictaphone? Did he say "comma," "period," and "new paragraph," and so forth? Surely, even in these divinely inspired texts, the human author in giving some form to the material.

I'm getting a more Mad Men, "sit on my lap and take dictation" vibe. Jesus chasing you around the desk after a three martini lunch.

The question on the table is divine inspiration where the words are asserted to have been dictated. This isn't paraphrase. This is verbatim. Then what?

The standard for original expression is pretty low in this country for copyright protection, but taking dictation? I don't think that would qualify for copyright protection, since the "author" of the work is non-corporeal (or something like that).

As for having a copyright in transcribing Senate hearings - normally the problem would be that the transcription would be a derivative work, limited to the amount of new original expression. But, this is the one place in the U.S. where a work does not get copyright protection (is in the public domain ab initio), and that is works of the U.S. govt - which means works created by employees of the U.S. govt. in the normal course of their employment. Which Senators talking on the Senate floor most likely are.

Finally, my memory of the West case was that they lost and/or retracted their claims in light of almost assured loss. Their basic problem was that they did not add any actual original expression to the underlying works (the decisions they published). The order that the works are selected for publication is fixed, as is the length of each case, what is published for the case, etc. The pagination is therefore fixed, and the copyright to the underlying work is often in the hands of the states. What they do have a copyright in are their case notes. No question there. But I think that it is very, very, highly likely that they had no copyright in their pagination, because there was not sufficient original expression.

The primary case in this area is Feist v. Rural Telephone, where the Supreme Court rejected "sweat of the brow" as ever being the basis for U.S. copyright protection. The case involved the publication of white pages, and, like the West case, the content and the ordering was externally determined. All they did was take a list and publish it. If they had removed the bogus entries that the telephone company had inserted, they might have had a chance. But, they didn't. All they had was sweat of the brow, and that was insufficient. Not a lot of original expression is required - but they had none, as West really had none either. (But, the transcriptions mentioned above may have sufficient original expression on the part of the transcriptionists).

"By the way, did Schucman assert that Jesus dictated like a boss with a Dictaphone? Did he say "comma," "period," and "new paragraph," and so forth? Surely, even in these divinely inspired texts, the human author in giving some form to the material."

Joseph Smith claimed to have translated the Book of Mormon (from a reformed version of Egyption) in various ways, which included direct dictation from God (sometimes by seeing words on a stone in a top hat). But he was not given any punctuation in the process. The punctuation was added by the printer: "His effort resulted in somewhere between 30,000–35,000 additional punctuation marks."https://www.lds.org/ensign/1983/12/understanding-textual-changes-in-the-book-of-mormon?lang=eng

The Book of Mormon was also copyrighted, though it claimed to be a translation of other author's works, which themselves were often directly dictated by God.

At least in this example, there was some input in the author. Which also included later corrections of obvious mistakes in the text.

I knew two acim people involved with Marianne Williamson, a popularizer and public face (coincidentally currently running for Congress here in CA) who had nothing at all to do with writing it. I hope I am remembering this correctly.

Helen Schucman was an associate prof of clinical psychology at Columbia. She and her partner/boss kept the whole experiment quite secret from their colleagues at the time (because they weren't idiots). It was originally intended for personal use.

It's a huge book, took years to dictate, and there were three main editors including Schucman. IIRC it was like dictation in the sense that her inner voice could stop, take long breaks while she attended to her regular duties, then start where it left off - close to linear output. A good portion of it is also written in iambic pentameter.

It was originally published anonymously at first through a non-profit; It was Helen who insisted on the copyright to preserve the integrity of the material so the message, which I would describe as a hardcore, non-dualistic Christian-Buddhism, would not be bastardized. She didn't want anything to do with popularizing it, in any case, and died in 1981 before it became huge. Her name, in association with acim, was only revealed after her death. Her husband, who had nothing to do with any of it, is on record as saying that of course it was Helen's book. (He also described her as the most intelligent person he ever knew, fwiw.)

Most of the copyright shenanigans came afterwards. It sounds like the German court made the right decision. There are other unofficial, completely free versions all over the place. The site/organization could use those if it wanted to as others have over the years.

From what I know of US IP laws, if you don't aggressively protect your copyright, you cede control of it.

To the extent that it's a translation… the writer of a translation is creating a new form that is copyrightable. You could dredge up some old public domain work and translate it and have a copyrighted work.

But… so… Smith didn't know the language he was doing the translation from… right? The translation came from beyond him?

"But… so… Smith didn't know the language he was doing the translation from… right? The translation came from beyond him?"

That is right. To my recollection, it isn't a recognized language to modern scholars - a mix of Hebrew and Egyptian. He did not have any formal training in either language. So it did come from beyond him.

What happens in cases where a human author has related a story told by another human being? I think the person who sets it down in writing owns the copyright.

To be copyrightable, a work must be "fixed original expression". In the above example, no one owns the copyright. The speaker did not "fix" their original expression (they only spoke into the air), and it was not the transcriber's "original" expression (because they were merely transcribing the expression of another). Neither person fulfills the statutory requirements to be author.

Facts not in evidence could change this outcome, such as if the speaker hired the transcriber to transcribe her words and they had a written agreement that the resulting product was owned by the speaker...

Also be advised, many companies claim copyright in things they do not or cannot have copyrighted. Like slogans. Or photographs taken by monkeys they gave cameras to. https://www.techdirt.com/articles/20110706/00200314983/monkey-business-can-monkey-license-its-copyrights-to-news-agency.shtml